151 N.Y.S. 1056 | N.Y. App. Div. | 1915
Lead Opinion
Testatrix, a widow since 1896, made her will in 1900 and died in 1911, leaving personal property, exclusive of that specifically bequeathed, amounting to $81,553.63. The admitted debts are $2,660.59, and claims rejected amount to some $2,407.69. The expenses of administration are $10,557.74, including $9,000 transfer tax. The net balance is sufficient to pay slightly more than one-half of the general legacies, which are $132,200. There was real estate, an important part of which was devised specifically to her sister Julia, or her daughters, while the residue of real and personal property was given, one-half to her sister Julia and one-half to Sarah E. Skillin, a niece by marriage, and her children, to whom also was given the other one-half if Julia did not survive the testatrix. The largest legacy is to Sarah E. Skillin and her three named children, and the same persons took contingently under the 9th and 10th paragraphs of the will. There are three questions: (1) Are the gifts to Sarah E. Skillin and her three children in the 8th, 9th and 10th clauses of the will, to the persons named as a class, or as tenants in common, which inquiry arises because Sarah and her daughter, S. Amelia Skillin, died before the testratrix; (2) did the 5th paragraph carry to the devisees not only lot F, on Washington street, which the testatrix then owned in its entirety, but also all the land used by testatrix as her residence, including lot D at the corner of Washington and Prospect streets, of which at the time of the will she owned one-half and her sister Julia the other undivided one-half, which the testatrix purchased of Julia’s executors in 1903; (3) were the general legacies charged on the land not specifically devised, that is, on the residuary ? The gifts of general legacies to Sarah E. Skillin and her children, designated by name, with direction that they “be
An account of cash receipts kept by testatrix in 1900.
A statement made by Mr. Oarley, her attorney and agent, of a large number of items of personal property.
Another statement made by Mr. Oarley, showing money received from her husband, which is $55,000 less than is in Exhibit B.
Memorandum by testatrix of bank balance on June 12,1900.
Memorandum by testatrix of deposit in bank June 30, 1900.
Memorandum by testatrix of deposit in bank July 19, 1900.
Memoranda by testatrix of money in house.
Memorandum by testatrix of receipts of money in 1899.
Memorandum by testatrix of moneys received in 1900, and comparison of income for 1900 with 1899, showing a difference, $375.07.
Statement by Oarley of moneys received and noticed in last named memorandum.
Exhibit A seems to be a careful monthly statement in the handwriting of Mrs. Harper, showing moneys received for the year 1900. Except the note of her sister Julia, everything in the diary is, as I understand, mentioned in Oarley’s statement, Exhibit B, and everything in the statement is mentioned in the cash account, except the Britt mortgages on Conselyea street, $1,731.14 and $146.69. The court seems to have admitted memoranda of testatrix, Exhibits D to K, both inclusive, only to show a system of bookkeeping. When there is found in a decedent’s last residence her writing that in terms shows her receipts, it is admissible for all purposes, and as it is in evidence it may be so used, although not essential to prove the issue. It shows that her total income for the two years was nearly the same, and that she refers to Oarley’s statement, which is Exhibit L. So we have the memorandum for 1900, corresponding so closely to Oarley’s statement of her personal
The judgment should be modified to conform to the amended findings, and as so modified affirmed, with costs to each group of respondents.
Jenks, P. J., Cabb and Rich, JJ,, concurred; Bubb, J., read for reversal as to a part of said judgment.
Dissenting Opinion
I dissent from so much of the prevailing opinion as holds that the general legacies are a charge upon the residuary real
Judgment modified in accordance with opinion, and as so modified affirmed, with costs to each group of respondents. Order to be settled before Mr. Justice Thomas.